Court File and Parties
COURT FILE NO.: CV-19-81096 DATE: 20210208 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANTRANIK KECHICHIAN, Plaintiff AND: FRANCOIS LEPAGE, BERNIER BEAUDRY, MADELINE BONHOMME, SAMEH MANSOUR, 10313033 CANADA INC., DANNY DREIGE, KHALED SHEIK, ROSALIE MALO and RAHMA HAJAJI, Defendants
BEFORE: Mew J.
COUNSEL: Antranik Kechichian, unrepresented Gary G. Boyd, for the defendants (moving parties), Francois Lepage and Bernier Beaudry
HEARD: 28 October 2020, in Ottawa (by Zoom)
Endorsement
[1]
Overview
The defendants Francois Lepage and Bernier Beaudry bring a motion for summary judgment dismissing the plaintiff’s claim against them on the basis that there is no genuine issue requiring a trial because the statement of claim fails to disclose a valid cause of action against them.
[2]
Background
Mr. Lepage was, at all material times, a lawyer with the firm Bernier Beaudry in Québec City, acting for CLE Capital Inc., a commercial financing company, that had financed the purchase of certain equipment listed in the statement of claim.
3The moving parties had been engaged by CLE Capital Inc. to seek enforcement of their security against certain equipment in the context of an application by the Savard Group of Companies pursuant to the Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36. The plaintiff was a guarantor of the original equipment leases involved in the CCAA process and became interested in purchasing the equipment from CLE. The moving parties represented CLE in these negotiations. The plaintiff had his own lawyers.
4Pursuant to a “Transaction and Acquittance” document entered into between, inter alia, CLE Capital Inc. and the plaintiff, terms were agreed for the purchase of the equipment by the plaintiff. One of the terms was that the plaintiff would deposit $30,000 in his lawyers’ trust account. Although Mr. Kechichian did so, the transaction was never completed. The moving parties say that Mr. Kechichian decided not to go through with the transaction. Mr. Kechichian denies this and alleges that he was stalled by the moving parties, who had him “running around in circles” for a year.
5In the statement of claim, consisting of some eighty paragraphs, the plaintiff seeks relief against the moving parties in the form of payment of the amount of $150,000 in “legal fees and punitive damages, for using the Plaintiff as a pawn to sell their assets” to 10313033 Canada Inc. for a “better price” or for “better reasons” that fit the defendants’ agenda.
6CLE is not a named defendant in the action. Despite his denial that he had told the moving parties that he no longer wished to purchase the equipment, the plaintiff’s then lawyer wrote a letter on 1 June 2018 to that effect. As a consequence, the moving parties, on behalf of CLE, took steps to regain possession of the subject assets. On 11 January 2019, the moving parties obtained a court order confirming CLE’s right to possession of the equipment.
7The record contains a copy of a letter from the plaintiff’s former lawyers informing him that they were returning the $30,000 that had been placed in trust. The correspondence also confirmed that the plaintiff had chosen not to retrieve the equipment and had not executed an agreement with CLE.
8On cross-examination, the plaintiff acknowledged that his claim for legal fees was for his own time (he is not a lawyer). No legal or accounting fees referable to his allegations against the moving parties were incurred by the plaintiff.
[9]
Analysis
The moving parties argue that the statement of claim does not articulate a viable cause of action against them. And even if, giving the pleadings the most generous reading possible, some basis for a valid claim against them could be discerned, the evidentiary record does not demonstrate the existence of an agreement for the sale of assets to the plaintiff: the transaction and acquittance document attached to the affidavit sworn by the plaintiff is not executed by all of the parties identified in that document.
10Furthermore, even if there was some viable claim, the plaintiff has not suffered any compensable loss, and his bald claim for punitive damages is unsustainable.
11The plaintiff acknowledges that the equipment was ultimately vested in CLE. However, he says that he acted in good faith by placing $30,000 in a trust account pursuant to an agreement which he says he had no reason to believe would not be honoured. He asserts that the moving parties essentially inserted themselves between the plaintiff and CLE and, through negligence or obstruction, prevented him and his company from acquiring the equipment.
12While the plaintiff’s frustration with the moving parties and his sense of grievance over the failed transaction are understandable, the insurmountable obstacle which he faces is that the action, and the evidence, fails to articulate any circumstances under which the moving parties, as the lawyers representing the sellers, in a proposed transaction in which the plaintiff was the buyer, owed a duty of care to the plaintiff. Insofar as the plaintiff’s action concerns allegations of breach of contract, he should be seeking relief from the principals of the moving parties, rather than the lawyers who acted for them.
13Consequently, the plaintiff’s claim against the moving parties is untenable. It is bound to fail. There is no triable issue.
[14]
Disposition
Summary judgment shall go in favour of the moving parties dismissing the action against them. I am presumptively of the view that the moving parties are entitled to their costs of the motion and the action on a partial indemnity basis.
15As this is one of six summary judgment motions involving the plaintiff which were heard consecutively, I will give direction separately with respect to the delivery of costs summaries and submissions on the issue of costs in both this and the other summary judgment motions which I heard at the same time.
Mew J.
Date: 08 February 2021